Lesbian and Gay Solidarity Network (LGSM) has submitted its objections to the Serbian government proposals for new legislation on same-sex partnerships and on the prohibition of discrimination. Among other things, we demand that the laws be applied without delay and for the clear definitions of homosexual and bisexual orientation to be introduced in the law.
In February this year, the Ministry of Human and Minority Rights and Social Dialogue opened a debate on its proposals for the Law on Same-Sex Partnerships and for amending the Law on Prohibition of Discrimination. In our submissions to the ministry, we have pointed out the essential shortcomings in the existing and proposed legislation. Both laws have been brought forward as part of Serbian EU accession process and they are subject to fierce debate. Serbia is one of few countries in Europe that has no legal recognition of same-sex partnerships, and the constitution itself defines marriage as a communion of a man and a woman. The governing majority in Serbia, represented in the center-right Serbian Progressive Party and authoritarian leadership of president Aleksandar Vučić, has professed its determination to extend rights to the LGBT community and to fight discrimination. However, as it would become obvious as we discuss the shortcomings of the proposals, it seems that there is neither will nor understanding of the issues at stake.
Rights without delay!
LGSM demands that the implementation of the law on same-sex partnerships starts within a reasonable period of one month after its adoption, and not within a year (!) as envisaged in the current proposal. We believe that it is unfounded to ask for a whole year just for the adoption of bylaws and other formalities. In this move of the government, we recognize the lack of will to give lesbians and gays the rights arising from the partnership, and not any real difficulties that stand in the way of putting this law into practice.
We are witnessing laws being passed across the Balkans on the rights of LGB people that are just dead letters or that are not enforced consistently. The law on same-sex partnerships has existed in Kosovo for years, but Kosovo still doesn’t have any registered same-sex partnerships, due to the rampant homophobia in society. We question the message that the government sends by delaying the implementation of this law for a whole year: does it really want to implement the law at all, or it just needs to declaratively adopt it? Do we need a paper for appeasing the Brussels EU administration, or do we really want to give lesbians and gays an equal status in society? Will we witness pressure to further delay the start of implementation of this law before the expiration of this one-year period?
Laws are useless if they are not applied.
We also point out that the implementation of a large number of provisions of this law does not require any bylaws or formalities. For example, same-sex partnerships performed abroad, as well as unregistered partnerships, can immediately be equated in rights with marriage, in areas where the law provides for this, such as employment, use of public services, residence, acquisition of citizenship, etc. These are life-changing provisions for many gays and lesbians.
We believe that if the National Assembly of Serbia, on the day of the adoption of the law, considers these as fundamental rights of lesbians and gays, denial and postponement of those rights for a period of a whole year without any real basis would be equal to “inhuman or degrading treatment or punishment“ which is prohibited by the Constitution of the Republic of Serbia.
Homosexuality is not a bad word!
We are surprised and worried that the words “homosexuality” and “bisexuality” are not mentioned in the entire text of the Law on Prohibition of Discrimination, which supposes to protect LGB people from discrimination. The words lesbian and gay are also not mentioned. The only thing that is said is that “sexual orientation is a private matter.” We believe that this is not a protection against discrimination, but a new way to push gays and lesbians in the closet. Sexual orientation fundamentally regulates our relationships with other people and it being a “private matter” is certainly not the only thing needed to define it.
For laws to serve their purpose, we need to know what they are about. We need to define the terms they use. Therefore, LGSM asks that the notion of sexual orientation be defined in this law, instead of being considered self-evident. Bearing in mind that sexual orientation is increasingly being equated with any sexual practices, preferences, choices, etc., as well as that unfounded concepts such as “demisexuality”, “pansexuality”, “sapiosexuality” are emerging in popular culture, but also in certain academic disciplines. This is why we believe that it is important to clearly define the category that the government has the intention of protecting from discrimination.
In this regard, we’re asking for a definition that will recognize sexual orientation as “a human characteristic that represents an innate sexual attraction and the need to engage in a sexual or emotional relationship with persons of the same, opposite, or both sexes”, and that on that basis sexual orientation can be one of the three: homosexual, bisexual and heterosexual.
In the absence of this definition, LGSM believes that there may be a situation where anyone who engages in certain sexual practices and considers them his or her “private matter” – including various fetishes – can declare it a sexual orientation and seek protection from discrimination under this law.
Replace the term “gender identity“ with the words “sex, i.e. gender“
The Lesbian and Gay Solidarity Network demands deletion of the unfounded notion of “gender identity” from both laws, replacing it with the term “sex, i.e. gender”. We point out that the term “gender identity” is not defined in the Serbian law and that in the academic literature it is usually understood as an identity that is determined on the basis of one’s own statement and is not necessarily related to sex, as a biological category. On the other hand, the prohibition of discrimination on the grounds of sex is guaranteed in the Constitution of the Republic of Serbia.
We also remind what are the definitions of sex and gender which our government has used in drafting the Law on Gender Equality:
1) gender means socially determined roles, behaviors, activities, and attributes, which a certain society considers appropriate for women and men;
2) sex is a biological characteristic on the basis of which people are divided into women and men;
From the above, it is clear that the laws of the Republic of Serbia recognize sex as a binary biological characteristic, and gender as “attributes” (and we would add, mechanisms of oppression) that society prescribes to women and men. In contrast, the term “gender identity” is not defined nor has any basis in biological and social reality and its use introduces unnecessary confusion. Moreover, as in academic literature “gender identity” is usually described as an innate feeling or matter of self-identification, introduction of these criteria would be detrimental for the protection of the discrimination on the basis of sex or gender. LGSM emphasizes that gender is not a matter of choice or identity, but a social position that is assigned on the basis of sex.
The Law on Prohibition of Discrimination lists sex and “gender identity” among the categories on the basis of which we are protected from discrimination, but does not specify gender. If the government has otherwise recognized the need to protect against discrimination based specifically on gender – “socially determined roles, behaviors, activities, and attributes” prescribed on the basis of sex as a biological category – it is not clear whether this law does that at all. We emphasize that this kind of protection is particularly important for lesbians, gays, and bisexuals who are often gender-nonconforming.
The Law on Same-Sex Partnerships, in the article prohibiting discrimination, states that “any direct and indirect discrimination on the grounds of same-sex union, sexual orientation and gender identity of same-sex partners is prohibited“ – without mentioning either sex or gender! Therefore, it is not clear whether same-sex partners are protected at all from discrimination on the grounds of sex, which is in fact the discrimination they will face. If a person in a same-sex partnership is not granted the rights arising from a same-sex partnership (in areas where it is equated with marriage) because he or she is not of the opposite sex to his or her partner, then that person will be discriminated against on the basis of sex and not “gender identity“.
Furthermore, we believe that it is important to recognize the tendency to use the term “gender identity” in the laws to replace not only the concept of gender but also the concept of sex, that is to reduce sex to the issue of self-identification. This erases protection against discrimination based on sex, which leads to the collapse of both the rights of homosexuals and the rights of all women. It is especially problematic for lesbians and gays if their innate attraction to the same sex is presented as an attraction to people with a certain “gender identity“, which ignores the biological reality of sexual orientation and abolishes the rights established on this basis. Having in mind all the above, we believe that the term “gender identity“ as such should not be regulated by these laws, nor introduced into any laws of the Republic of Serbia.
Shout out to everyone to come out!
The Lesbian and Gay Solidarity Network demands that the Law on Prohibition of Discrimination does not prohibit a public invitation addressed to an individual or a group of people to publicly declare their sexual orientation, but to prohibit only when someone (for example, an employer) demands that someone does so. We believe that it is important to point out that situations of so-called “violent outing“ always imply a position of power and conditioning and represent one of the elements in the wider practice of discrimination. It is not discriminatory to invite or appeal, which can be done from a position of the underprivileged, as part of the political struggle, and which must be protected as a freedom of speech. In the history of the gay and lesbian liberation movement, one of the important strategies have been public calls for gays and lesbians to come out, to publicly disclose their sexual orientation, in order to change the public opinion from below. If such strategies of political struggle are prohibited, as is implicitly stated in this law, then we cannot fight homophobia in the wider public arena, calling for outing and relying on gaining the sympathies of the majority, but we can just lobby behind closed doors.
Although the process of adopting these laws is only at the beginning, the opposition from some parts of the public is already loud, primarily that of the political right which is trying to collect political points by presenting itself as the guardian of the religion. However, as our comments show, the ruling elite also shows neither the understanding of what homophobia is and how to fight it nor the will to fight it, without the gains being reserved in advance only for the privileged class.
The introduction of same-sex partnerships in a large number of countries was accompanied by wide public campaigns, which won the solidarity of the majority, that is heterosexuals, who recognized the humanity of lesbians and gays, the way they recognize their own. In those countries, lesbians and gays were not afraid of national referendums to show that the majority is on their side. We need society to end the practice of erasure and silence and to begin the practice of acceptance. We believe that gaining the support of the majority, not just the ruling elite, is the only right way for these laws to reflect the change in society and the beginning of the end of homophobia, not only for the right to legally recognize our partnerships, but also to gain social and economic rights for lesbians and gays.
Lesbian and Gay Solidarity Network is the only LGB group in Serbia and the only one which advocates these positions, namely, that we have to fight homophobia bottom-up, to rely on mass organizing in order to address social and economic issues, and to build allyship with women’s movement. We ask everyone to get involved – support us on social media, find your local LGB groups, and if you can donate to our campaigns!